JAGDISH Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS revision is directed against the judgement dated 23.5.2006 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 10 of 2004 affirming the judgement dated 30.7.2004 /31.7.2004 passed by learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, Mandi, H.P. in police challan No. 119 -1/2001 (1999)/172 -II/2000. The prosecution case in brief is that PW -2 Ramesh Kumar boarded bus No. HP -33 -2147 of Chaudhary Bus Service on 12.4.1998. There were other passengers also in the bus. The driver of the bus got down at place Chail Chowk. In the meantime, Himachal Road Transport Corporation (HRTC) bus Gohar to Shimla came from the side of Gohar. On this the petitioner at once sat in the driver seat and started the bus in high speed towards Ner Chowk. The petitioner at place Kainchi Mor lost control of the bus while negotiating a curve and bus rolled down. The complainant and other passengers travelling in the bus sustained multiple injuries. The accident took place at 8.00 a.m. The injured were taken to hospital.

(2.) THE further case of the prosecution is that accident took place due to rash and negligent driving of the bus. The statement of complainant under section 154 Cr.P.C. Ex. PW 2/A was recorded and thereupon FIR Ex. PW 15/A was registered. It has come in the investigation that Hem Singh, Bhagat Ram, Param Dev died in the accident and several other passengers sustained injuries. The MLCs of the injured and post mortem reports of the deceased were obtained. The mechanical report Ex. PW 10/A of the bus was obtained. On completion of investigation, report under section 173 Cr.P.C. was submitted.

(3.) I have heard Mr. M.S. Guleria, Advocate, Learned Counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General and have also gone through the record. It has been submitted on behalf of the petitioner that two courts below have misconstrued, misinterpreted the material on record and have erred in convicting and sentencing the petitioner. The accident took place not because of rash or negligent driving of the driver but due to mechanical brake down of the bus. High speed in itself is not an offence unless it is coupled with rash and negligent driving. The petitioner right from very beginning has taken the defence that accident took place due to mechanical brake down and not because of negligence or rashness on the part of the driver. It has been submitted that defence of the petitioner is proved by the prosecution witnesses. PW 4 has stated that he heard the sound of thud and immediately thereafter the bus rolled down. This witness was not declared hostile by the prosecution and, therefore, statement of PW 4 is binding on the prosecution. The other prosecution witnesses have also stated that petitioner was driving the bus in normal speed. The submission has been made for acceptance of revision and setting aside the conviction and sentence of the petitioner.